Wallace v. Blake, 128 N. Y., 676. 12 to support it at this time by an extended reference to the decisions and we shall, therefore, end the discussion by citing a few of the cases in which the courts of this State have said that a defendant, in order to avail himself of facts not appearing on the face of a contract to establish its invalidity, must plead it. (Dingeldein v. Third Ave. R. R. Co., 37 N. Y., 575; Goodwin v. Mass. Mut. Life Ins. Co., 73 id., 480; May v. Burras, 13 Abb. N. C., 384; Haywood v. Jones, 10 Hun, 500; Schreyer v. Mayor, 13 etc., 7 J. & S., 1; Vischer v. Bagg, 21 Weekly Digest, 399; Honegger v. Wettstein, 94 N. Y., 252.) The judgment should be reversed. WALLACE v. BLAKE. New York Court of Appeals, 1891. [Reported in 128 N. Y., 676.] 1. A subsequent modification of the agreement set out in the complaint cannot be shown under a general denial.* 2. In an action to recover a balance due for goods sold, after it has been shown by uncontradicted evidence that defendants purchased, received and disposed of the goods, the defendants cannot, under a general denial, show that after their receipt and acceptance of the goods, they complained of their quality, and it was then arranged that they should be considered as having received the goods as plaintiffs' agents for sale; nor that defendants rejected the goods because of inferior quality. * In an action upon a contract, where the complaint sets out only part of the agreement, omitting another part which materially qualifies the agreement as set out, under a denial that the agreement was as set forth in the complaint, the defendant is entitled to read in evidence the part which has been omitted. In an action to recover royalties alleged to be due upon the manufacture and sale of a patented article, under a license or agreement,—Held, that the defendant, under a general denial, may read in evidence another instrument made between the same parties, at the same time, in reference to the same subject matter, so as in reality to form a part of the agrement set forth in the complaint, whereby the amount of the royalties were materially reduced. Marsh r. Dodge, 66 N. Y., 533. Wallace v. Blake, 128 N. Y., 676. The complaint, after alleging partnership of the parties 1 respectively, proceeded : III. That on or about the 3d day of March, 1886, the plaintiffs delivered to defendants, at their request, a quantity of yarn of the agreed price or value in the money of Great Britain of £810, as further shown on the statement hereto annexed and marked Exhibit A. [Four more sales of yarn on different dates were similarly alleged, various payments made by the defendants were admitted, and a balance of $1,979 was alleged to be payable to plaintiffs.] 2 The defendants denied any knowledge or information sufficient to form a belief as to the allegations covering the sales, and denied the allegations covering the payments by them and the balance due. At the trial, plaintiffs proved the sale, delivery and acceptance of the goods, by undisputed evidence. The defendants then offered to show that after the sale and delivery of the yarn to them they complained to the plaintiffs of the quality thereof, 3 and that then it was arranged that they (defendants) should be considered as having received the yarn as consignees, and that they were to sell it for and on account of the plaintiffs. The Court of Appeals held that the trial judge had properly excluded such a defence on the ground that it was not pleaded. EARL, J. [after stating the facts]: It was an affirmative defence which, according to elementary rules of pleading, could not be shown under the denials in the answer. The defendants claim that they had the right to prove under 4 their denials that they had not accepted the yarn. But the uncontradicted evidence shows that the yarn was purchased by them of the plaintiffs' manufacturers in England; that it was shipped to them as purchasers from England, and was taken, received and disposed of by them, and all this shows a legal acceptance of it by them. Their claim, however, is that after the yarn was delivered to them it was arranged that they should hold and sell it as consignees, and that thus they rejected it as Sprague v. Sprague, 80 Hun, 285. 5 purchasers. But they had no right to assert this claim under their answer. To the defendants' claim that after they had purchased the yarn, and it had come into their possession and control as the purchasers, they rejected it because of its inferior quality, the answer again is that no such defence is alleged, and that there is no allegation in the answer that this yarn was in any respect 6 inferior or defective. 1 The reply to this answer contains no allegations or admissions which can cure the defective answer or enlarge its scope. The judgment should be affirmed, with costs. SPRAGUE v. SPRAGUE. New York Supreme Court, General Term, Second Department, 1894. [Reported in 80 Hun, 285.] 1. To a complaint on a promissory note an answer which denies the making and delivery of the note and any indebtedness thereon is in effect a general denial. 2. A promissory note, whether it expresses value received or not, imports a consideration, and the burden as to consideration is upon the defendant. 3. If the answer does not allege want of consideration, that defence cannot be proved. This action was brought upon a promissory note made by defendant's intestate. The answer denied the making and delivery of the note, and any indebtedness thereon. BROWN, P. J. The main question of fact litigated upon the trial was as to the authenticity of the note, and the verdict of the jury has, upon ample testimony, determined that question in the 2 plaintiff's favor. The question of consideration did not arise upon the pleadings. The answer was in effect a general denial, and that put in issue all facts which plaintiff was bound to prove to make out his cause of action. (Milbank v. Jones, 141 N. Y., 340; s. c., p. 483 of this vol.) Note on the Effect of a Denial. A promissory note, whether it expresses value received or not, 3 imports a consideration, and the burden rests upon the defendant to prove the fact otherwise. (Carnwright v. Gray, 127 N. Y., 92; s. c., p. 58 of this vol.) As the answer did not plead that defence, the court was correct in its charge that there was no question of that kind in issue. The fact that the payee of the note was the maker's mother did not take the case out of the operation of the rule cited. [A ruling on a point of evidence is here omitted.] BAUMILLER v. WORKINGMAN'S CO-OPERATIVE New York Common Pleas, General Term, 1894. [Reported in 9 Misc., 157.] The objection that the action has been prematurely brought, unless the fact appears on the face of the complaint, is an affirmative defence, and not available under a general denial. In an action on a policy of insurance in the Workingman's 1 Co-operative Association, for "sick benefits," the defendant objected that the action was brought prematurely, because before the expiration of the thirty days allowed by the policy. Held, the fact is not apparent, and it was an affirmative defence of which the appellant could not avail himself under his general denial. NOTE ON THE EFFECT OF A DENIAL. The code procedure requires allegations and denials to relate to matters 1 of fact, and, although not dispensing entirely with conclusions, such as give character to the intention of the pleader, yet deprives conclusions of all controlling force as elements in the issue joined. Hence the test as to what may be proved under a traverse of the plaintiff's pleading is quite different from that applicable at common law. The result of a general traverse at common law varied in different forms of action and different Note on the Effect of a Denial. 2 forms of the plea. The commonly stated rule (particularly applicable in assumpsit) was that the general issue let in evidence of anything to show that plaintiff never had a cause of action and any evidence in mitigation of damages. Under the Code the rule as commonly stated is that a general denial lets in any evidence tending to controvert what the plaintiff is bound to prove in the first instance to make out his claim. Griffin v. Long Island R. R. Co., 101 N. Y., 348. The test may be more precisely stated thus: If you desire to give evidence as to a new fact not indicated in the complaint, for the sole purpose of negativing something that is alleged in the complaint and with which your new fact is inconsistent, a mere denial of plaintiff's allegation lets in that evidence; and, on the other hand, a statement of that new 3 fact in the answer without denying plaintiff's allegation, will not let it in. But if you desire to prove a new fact, not for the purpose of negativing plaintiff's complaint, but for the purpose of putting this new fact along with those he has alleged, so as to show that on the whole case he is not now, or even that he never was, entitled to recover, the new fact must be pleaded and cannot be given in evidence under the denial. For instance, if the plaintiff alleges that the defendant wrongfully entered upon plaintiff's premises to his damage, etc., the ownership and the entry are matters of fact; the "wrongfully" is a conclusion. If it be desired to prove that the premises belonged to some one else merely for the purpose of negativing plaintiff's claim of ownership, this is competent 4 under a denial. If it be desired to prove that defendant was in another place, that the entry was made by some third person, this, since it tends to negative plaintiff's allegation that defendant entered, may be proved under a denial; and an allegation that the entry was made by a third person without denying that defendant made it, would not let in evidence of entry by the third person. On the other hand, if the object is to put, along with plaintiff's allegation of ownership and entry, another fact such, for instance, as previous license from the plaintiff, or that defendant was a sheriff with an execution, etc., so as to show that plaintiff never had a cause of action, these are not admissible under a denial because they do not tend to negative plaintiff's facts, but only his conclusion. See, for instances American Tool Co. v. Smith, 1 State Rep., 761; Wehle v. Butler, 12 Abb. Pr. N. S., 139; s. c. 35 Super. Ct. (J. & S.), 1; Pier v. Finch, 29 Barb., 170; Beaty v. Swarthout, 32 Barb., 293; Wilson v. Manhattan Ry. Co., 2 Misc., 127; s. c. 49 State Rep., 116; 20 N. Y. Supp., 852; Brown v. Chadsey, 39 Barb., 253. 5 The same principles apply to causes of action on contract, as well as to those on tort; and it is upon this principle that a modification of the contract alleged, or payment, or release, or an excuse for breach, or an assignment by plaintiff of his cause of action, or any other new fact which, though it may negative the conclusion, does not negative the allegations from which plaintiff seeks to draw that conclusion, must be pleaded by the defendant; while a materially different version-as, for instance, of |